PARTIES TO DISPUTE:



          Union Pacific Railroad Company


STATEMENT OF CLAIM:

 Claim of the System Committee of the Brotherhood that:

          1. The Agreement was violated when the

          carrier assigned outside forces (A&K

          Materials) to perform routine Maintenance of

          Way work of cleaning the right of way of

          rail, anchors, tie plates, spikes and joint

          bars between Montpelier, Idaho and McCammon,

          Idaho commencing October 13, 1998 and

          continuing (System File J-9852-78/1171326).


          2. The Agreement was further violated when

          the Carrier failed to furnish the General

          Chairman with proper advance written notice

          of its intention to contract out said work

          and failed to make a good-faith attempt to

          reach an understanding concerning said

          contracting as required by Rule 52(a).


          3. As a consequence of the violations

          referred to in Parts (1) and/or (2) above,

          Northwest District Roadway Equipment

          Operators M. J. Dunn, G. L. Purkey, Idaho

          Division Track Subdepartment Foreman R. A.

          Skinner, Idaho Division Track Subdepartment

          Sectionmen D. F. LeFevre and P. M. Cantu

          shall now each be compensated `... at his

          applicable straight time and overtime rate a

          proportionate share of the total hours worked

          by the contractor doing the work claimed as

          compensation for loss of work opportunity

          suffered from October 13, 1998, until the

          contractor is removed from Company property

          or until the project is completed.'


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FINDINGS:

 This Board, upon the whole record and all of the evidence, finds and holds as follows:

 1. That the Carrier and the Employees involved in this dispute are, respectively, Carrier and Employees within the meaning of the Railway Labor Act, as amended,; and

      2. That the Board has jurisdiction over this dispute.


OPINION OF THE BOARD:

 A careful review of the record indicates that the present dispute involves an alleged "as is, where is" transaction. The present record, however, substantiates that the Carrier retained a significant amount of the relevant material. To the extent that the Carrier retained such material, an "as is, where is" transaction did not occur and the Carrier therefore violated the collective bargaining agreement by failing to assign its own employees to perform the disputed work. To the extent that the Carrier did not retain such material, an "as is, where is" transaction did occur and the Carrier did not violate the collective bargaining agreement by permitting outside forces to retrieve the material. As a remedy, the parties shall meet to determine the portion of the disputed work that violated the Agreement because the Carrier had retained the relevant material. For such work, the Carrier shall pay the appropriate proportion of straight-time hours to the appropriate Claimants.

 AWARD:

 The Claim is sustained in accordance with the Opinion of the Board.

                    R bert L. DoAlas

                Chairman and Neutral Member


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Bartholo a \ D. A. Ring
 Emp oyee M b r _~ Carrier Membe

 Dated:

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